noncompliance created switching costs for consumers

Interoperable Receiver. The Order characterizes the Applicants’ interpretation of the Commission’s interoperability requirement as “not unreasonable” to excuse their earlier failure to develop and market interoperable receivers. The Applicants’ noncompliance created switching costs for consumers and, thus, limited pre-merger competition between the Applicants. Adding this condition today is virtually meaningless, because the merged entity will have every incentive to offer interoperable devices anyway. The point was to enforce the requirement before, not after, the merger. Doing it now is clearly a case of closing the barn door after the cows got out. At least the Order recognizes that this claimed benefit simply cannot be deemed merger-specific.